Cambodia criminalizes female surrogate mothers and makes them raise babies

The baby wasn’t really hers. Hun Daneth felt it, she counted on it. When she gave birth to a boy who didn’t look like her, it became even clearer.

But today, four years after she served as a surrogate mother for a Chinese businessman, who said she used an egg from a Russian donor, Hun Daneth is being forced by the Cambodian courts to raise the boy herself, under pain of going to the prison.

The businessman is arrested due to hiring the surrogacy. His appeal of the sentence was rejected in June.

While facing the shock of having to raise the baby, Hun Daneth was changing his diapers. As the months and years passed, he hugged and kissed him, coaxing him to eat more rice so he could grow strong. And he ended up looking at the boy as his own son. “I love him so much.”

The fates of a Cambodian woman, a Chinese man, and the boy who links them reflect the complex ethical dilemmas created by the global surrogacy industry. While the practice is legal in some countries — and in many cases extremely expensive — others have banned it. And some countries with weak legal systems, such as Cambodia, have allowed an underground market to function, putting those involved at risk when political conditions suddenly change, giving rise to criminal prosecution.

Advocates of the practice say that when done transparently, with safeguards in place, commercial surrogacy allows people to expand their families while rewarding women who bear children fairly. Done incorrectly, the process can result in the abuse of vulnerable people, whether they are the surrogate mothers or the parents of the unborn child.

The practice takes place in the nebulous space between people who can and cannot carry children; between those who have the means to hire a woman to carry their biological children and the women who need the money; and between people whose sexuality or marital status precludes them from adopting or otherwise becoming parents and those whose fertility exempts them from such restrictions.

Since surrogacy was clamped down in other Asian countries nearly a decade ago, Cambodia has become a popular destination for those interested. The recently opened fertility clinics and specialized agencies in the capital, Phnom Penh, began to attract a large movement of foreigners.

When the industry began to boom, the government banned the practice and promised to pass legislation that would officially make it illegal. But, in a country where corruption is endemic and laws are little respected, the text of the measure, which is not clearly defined, ended up punishing the very women it had promised to protect.

In 2018, Hun Daneth was one of 30 pregnant surrogate mothers arrested in a police raid on a high-end apartment in Phnom Penh. Although to date there is no law in the country specifically limiting surrogacy, the government has criminalized the practice, using existing laws against human trafficking, a crime that can carry sentences of 20 years in prison. Dozens of surrogate mothers were arrested, accused of trafficking the babies they carried.

“Surrogacy means that women are willing to sell babies, and that is considered human trafficking,” said Chou Bun Eng, secretary of state at the Ministry of Interior and vice chairman of the national anti-trafficking committee. “We don’t want Cambodia to be known as a place that produces babies for purchase.”

But the application of the human trafficking law to surrogacy has punished the surrogates themselves most severely. Almost all of the women arrested in the 2018 blitz gave birth in a military hospital while under arrest. Some were chained to their beds. They, as well as several surrogacy agency employees, were convicted of baby trafficking.

Their prison sentences, announced two years later, came with one condition: in exchange for suspended sentences, they would have to raise their children. The judge warned that if they tried to secretly deliver the children to the intended parents, the surrogate mothers would be jailed for many years. As a result, women whose precarious financial situation led them to practice now have one more mouth to feed.

Xu Wenjun, the father of the boy Hun Daneth gave birth to, spoke briefly from behind bars at a courthouse in Phnom Penh before police intervened. He has been in prison for three years. “My son must be big by now,” he said, wearing an orange prison uniform. “Does he remember me?”

Where he came from?

In the middle of a cloud of mosquitoes, next to a pile of rubbish soaked from recent rains, a boy ran towards Hun Daneth, still in his work uniform. She picked her son up and sniffed his face, a gesture of affection in many parts of Southeast Asia.

Hun, 25, decided to become a surrogate mother for the same reason as the others: her debts. Many debts. Like nearly a million other Cambodians, mostly women, she left the countryside and went to work in factories, sewing bras, T-shirts, backpacks and sweatshirts. But a few hundred dollars a month is not enough for many things in cities.

A scout at the garment factory where she worked told her of a possible solution. She could receive $9,000 — five times her base annual salary — if she were a surrogate mother. The scout worked for a local agency run by a Chinese man and his Cambodian wife. The wife’s sister managed the luxury residences where the surrogates stayed.

Eight surrogate mothers who spoke with the New York Times reported that the mansions had expensive chandeliers, air conditioning and flush toilets — things none of them enjoyed at home. Meals were plentiful.

Xu, a prosperous businessman from Shenzhen in southern China, was referred to Hun Daneth. He told friends who spoke with the New York Times that the only thing he lacked in his life was a son to continue his family line.

Most Chinese babies carried by Cambodian surrogates are boys. Sexual selection is prohibited in China, but not in Cambodia. Commercial surrogacy is not openly practiced in China, despite official concern about the country’s plummeting birth rate after decades of a brutally implemented one-child policy.

Testifying in court in Cambodia, Xu said his wife was unable to have children. But friends of his, who requested anonymity to speak for fear of antagonizing Cambodian authorities, said the businessman’s situation was more complicated: he had no wife and made no secret of the fact that he was gay. Hun Daneth said that Xu told him about his sexuality. LGBTQ couples cannot adopt children in China, and gay or single people cannot contract a surrogacy in most countries where the practice is permitted by law.

The Perfect Fertility Center, or PFC, a registered surrogacy agency in the British Virgin Islands, demonstrates rare solidarity with LGBTQ parents by pledging babies across Cambodia, Mexico and the US.

PFC was founded by Tony Yu, who used surrogate mothers to have his own children. He is openly gay and said Cambodian lawyers assured him his agency was legal. According to documents seen by the New York Times, in 2017 Xu signed a contract with the PFC, pledging to pay US$75,000.

Xu visited Hun Daneth at the luxury residence. He told her that there was an egg donor who was a Russian model. He showed Hun and her husband pictures of a white woman with wavy hair.

For Cambodian surrogates, being forced to raise children of other ethnicities can strain their families and communities. Due to the physical traits of the children, it is difficult to explain their origin. “People ask, ‘Why does he have brown hair? Where did it come from?'” says Vin Win, 22, another surrogate mother who was arrested with Hun.

“A disaster”

Cops entered through the complex’s marble arches and stormed the two mansions, handcuffing the expectant mothers who were snoozing on their pink framed beds playing Candy Brush. The police operation in July 2018 was part of a crackdown on the practice of commercial surrogacy across the region.

Ten Cambodian women who spoke to the NYT, including the eight who were arrested in 2018, said they had become surrogates by choice. The Ministry of Health announced a ban on surrogacy in late 2016, but has not adopted new legislation criminalizing the practice. In the undefined legal space thus created, fertility clinics and specialized agencies continued to open.

Police operations against the clinics began the following year. Yu was not in Cambodia when the police raided the mansions. He said he was unaware that his agency was breaking any laws. “I wanted to do everything legally and transparently,” says Yu. “About the fertility clinic, everyone said, ‘It’s safe, it’s comfortable. They have a solid track record.’ I believed that. But then disaster struck.”

“Our babies are our crime”

In August 2018, handcuffed to a military hospital bed, Hun Daneth gave birth to a baby boy with brown hair, fair skin and the same big eyes as her Chinese father. After Yu paid nearly $150,000 to the police, by his own account, the surrogate mothers were released. Yu recounted that she spent over $740,000 trying to resolve the situation.

The government ordered a Christian charity founded by Americans to combat child sex trafficking to check on the status of women after they give birth, officials said.

“It was like we were thugs,” commented another surrogate, Ry Ly. “Our babies are our crime.”

Despite the mothers’ promises to the court that they would raise the children themselves, several of the children are no longer in Cambodia. According to Yu, they were handed over to their Chinese parents.

Xu, the Chinese businessman in prison, went to Cambodia to try to take his son away. He approached Han Daneth directly, despite the agency’s advice to keep a low profile. He bought diapers and toys for the boy, whom he named Yeheng.

Xu submitted a paternity test to the Chinese embassy in Phnom Penh. In 2019, she got a passport for the boy. An official accompanied him to the police station to finalize the bureaucratic procedures. The founder of the surrogacy agency warned Xu that it was a police trap. Cops were waiting for him. Xu has been incarcerated since that day.

In 2020, Xu was convicted of human trafficking and sentenced to 15 years in prison. He appealed against the sentence, but in June of this year his appeal was denied.